Was Congress Too Hasty in Framing the Justice for Terror Victims Act?

October 11, 2016 – Congress overrode President Obama’s veto to effectively enact the “Justice Against Sponsors of Terrorism Act” (JASTA), a law that was meant to allow victims of 9/11 to sue the Saudi government for financing and aiding terrorism. In response to its passage, Saudi Arabia stated it would unravel the doctrine of “sovereign immunity.” This doctrine states that sovereign states (and government officials) generally cannot be sued. However, there are exceptions.

Sovereign immunity doesn’t extend to individuals (even in the government) that finance terrorism according to the UN Convention on the Financing of Terrorism. However, Saudi Arabia did not become a signatory to the UN Convention on Financing of Terrorism until November of 2001.

Perhaps this date was calculated to allow the fundamentalist Saudi officials the opportunity to see through the fruition of the 9/11 attacks. We may never know. The UN Convention on Terror Financing was open for UN state signatures from mid-2000 through December 2001. Saudi Arabia signed onto the Convention November 2001, just 2 months after the 9/11 attacks making them obliged to adhere to the principles set forth in the Terror Financing Convention as of that date and not before.

An argument could be made that Saudi Arabia still has the obligation to cooperate with the U.S. government to bring those responsible for the financing of 9/11 to justice even if they signed the Convention after its commission. (See Article 3(b)(i)-(ii).) After all, the Convention seeks to impose on states the responsibility to find terror financiers without regard to date of the terror attack.

Yes, Saudi Arabia should be liable for its financing of Wahhabi terrorism around the world. It should be held accountable for its infliction of Islamist indoctrination in the United States. And today, there is legal precedent to do so. Unfortunately, on September 11, 2001, that legal precedent did not exist. We can’t merely erase the lines of sovereign immunity to accomplish political objectives.

If JASTA’s pure goal remains to punish Saudi officials for its financing or aiding of the 9/11 attackers, we will miss the larger opportunity to enact justice for victims of religious annihilation at the hands of jihadists. It’s more important that we support reform or attempts to shift the dynamic in Saudi leadership. Furthermore, this law, while honorably intentioned, could now serve to harm our soldiers, leaders, military commanders, government officials and overall interests in the world in foreign courts under the same standards, thereby creating an international legal maelstrom that will effectively eradicate the necessity of the justice system.

Let’s hope those working to reframe JASTA do so wisely, using legal precedent, to ensure it doesn’t infringe on sovereign immunity in an “ex post facto” basis, but has the power to enact justice against those currently suffering at the hands of global genocide and terror campaigns in accordance with the laws.